Sunday, October 6, 2013

Nonessential Workers Should Not Return To work. Ever!

If a tree falls in the forest, and there is no one there to hear it, does it make a sound? How do you know?

If a judge makes a decision and there is no staff person there to write or publish it, does it make a difference?

National guardsman, Emell Monlyn was an essential
government worker when twin snowstorms blanketed the Mid-Atlantic in
2010. The Bowie man was also required to report for work when a
destructive derecho hit in June 2012 and Hurricane Sandy threatened later last year.
In the Great Shutdown of 2013, however, his services maintaining
vehicles for the District of Columbia National Guard are suddenly
dispensable. Monlyn is one of an estimated 800,000 so-called
nonessential federal workers idled by the federal government shutdown.
In Baltimore, meanwhile,Judge Richard Clark, an administrative law judge (ALJ)
for the Social Security Administration, has been declared essential.
This means Clark and his fellow judges can preside over previously
scheduled disability benefits hearings — but they won't be able to
deliver decisions because their support staff has been furloughed. (Hahaha!!)
All through the vast federal
bureaucracy, workers have expressed puzzlement over agency decisions
that determined who would keep working and who would be sent home.

"I can't see rhyme or reason for it," said Witold Skwierczynski, an
official with the American Federation of Government Employees (AFGE).
There's uncertainty over who will be paid and for what. In past
shutdowns, lawmakers eventually voted to reimburse furloughed workers
for lost wages. But in the current political climate, that may not
happen. So workers and their union representatives are
unsure who the lucky ones are — those furloughed for what could turn out
to be a paid vacation, or those ordered to keep working.
"It is a mess," said Skwierczynski, president of the AFGE Council of Field Operations Locals at Social Security.
In the past, he said, "people preferred to be nonessential so they
could sit at home and not work." But this time, he said, they're not
confident they'll be made whole by a Congress they see as hostile to federal workers.
Several lawmakers, including many from Maryland and Virginia, have co-sponsored legislation to restore the pay of federal workers
once the shutdown ends. The Office of Management and Budget (OMB) has said
that those who are required to report will be paid eventually, but some
workers are concerned they may have to work for an extended period
without compensation.
Skwierczynski said the AFGE, which represents some 300,000
dues-paying members, is preparing a lawsuit in which it will argue that
requiring government workers to report without a guarantee of timely pay
is a violation of the Civil War-era 13th Amendment, which outlawed
"involuntary servitude."
To determine who is essential and who is not, government lawyers have
applied the federal Anti-deficiency Act, a 19th-century law that has
been modified over the decades to provide a road map for agencies
responding to an interruption in congressional appropriations.
In a 1980 interpretation of that law, then-Attorney General Benjamin
Civiletti opined that agencies could obligate funds if they could show a
"reasonable necessity" that the spending was necessary to protect human
life or property. That keeps such workers as law enforcement agents on
the job.
Civiletti also said that because certain activities, such as the
payment of retirement benefits, may legally continue, the work needed to
support them can continue, too. That exception is why about 70 percent
of Social Security workers remain on the job.
Government functions that do not rely for funding on congressional
appropriations — such as the Postal Service and fee-based inspections —
may also continue.Among the functions insulated from the appropriations process was the
implementation of health insurance exchanges this week under ObamaCare, the
Affordable Care Act — the law at the center of the shutdown. The
exchanges are paid for through mandatory spending provisions of the act
that don't require congressional action.
The various exceptions have resulted in vast disparities in the
percentage of furloughed employees from agency to agency. More than 90
percent of the employees at the Department of Education and the Environmental Protection Agency have been designated nonessential, for example, but only 5 percent at the Department of Veterans Affairs.
The exceptions leave room for interpretation, and many of those
affected see the decisions as arbitrary. In many cases, the lawyers are
not so much deciding which people are essential but which of their
functions have to continue during the shutdown.At Social Security, for example, most of the employees who staff the
field offices are still working. But the agency has instructed them that
while they may accept applications for benefits, for instance, they
must turn away people seeking new or replacement Social Security cards.
Clark, a 19-year federal administrative law judge (ALJ) and vice president of
the National Association of Administrative Law Judges (AALJ) , said the agency's
decision to keep the judges and furlough the support staff doesn't make
sense."No decision is going to go out the door unless the support staff is there to do it," said Clark, who lives in Bel Air. (Because judges do not write their own decisions. Some do not even hold hearings before making a decision.)
He said the shutdown would contribute to a backlog of about 5,000 disability appeals cases in Baltimore.

(Judge Marilyn Zahm and Randy Frye of the AALJ)

ALJ Randy Frye, president of the administrative judges' association, said
the group's position is that the staff as well as the judges should be
considered essential.
In Monlyn's case, the decision to furlough most members of his
National Association of Government Employees union local came as a
surprise. As recently as Friday, he said, they had been assured by
managers that they would remain on the job. But when they reported
Tuesday, he said, all but seven of the 120 to 125 members were sent
home.
Monlyn, who is president of NAGE Local R-386, said he and other union
members are "dual status" employees — holding National Guard jobs as
both civilians and military members. Among the work they perform is
maintaining humvees, tanks and helicopters, gate security at National
Guard posts, and secretarial services.
In the event of a natural disaster or civil disruption, he said, their absence could impede the Guard's readiness.
"It's quite disturbing," he said.
Monlyn, 37, who is a sergeant in the D.C. National Guard, said the
furlough comes just as they were beginning to recover from the economic
effects of seven furlough days during the summer.Government workers have not actually been labeled "essential" or
"nonessential." Officials prefer to say "excepted" or "nonexcepted."
One reason is concern that the term "nonessential" would affect the morale of employees given that label. It also could create an opening for small-government conservatives to question whether those jobs should exist at all.
"The very fact that government agencies and organizations have
nonessential personnel present in the first place could be viewed as
testament to our bloated, overfunded ... unsustainable government,"
commentator Jeff Emanuel wrote in a 2011 article on RedState.com.
Many of the functions of furloughed workers are widely viewed as
critical even if they can be deferred for a limited time. Examples
included compilation of government employment statistics, auditing banks
covered by federal insurance and maintaining National Guard equipment.
Monlyn said that when managers gathered workers to notify them of the
furloughs, they reassured them that "everybody's essential."
He was not appeased.(By Michael Dresser, The Baltimore Sun)

About Me

I am a thoroughly civilized, humane, cosmopolitan, polished, restrained, enjoyable, entertaining Info-maniac. I am a staunch exponent of individual dignity, freedom, equal access to legal services, and equal protection of the law. Here I hope to demonstrate my emotional restraint, humbleness of sentiment, psychological subtlety, lucid style, and simple language, without evading political reality or eternal truth. Daily I am excited that I have the right to create the beginning of a new self and to challenge old habits and attitudes I no longer choose to accept. I choose to relax in the present with my direction firmly in mind. I have an enormous capacity for creative and clever ideas and thoughts. It is phenomenal what I can do. I am capable of so much learning and absorbing a lot of information. My potential is a source of pleasant surprise for me.
Each day, I increase in knowledge, skills, strength, faith, and abilities.With each adventure, the boundary hemming in my potential expands easily to accomodate my growth and achievements.